法學留學生作業：論中小型企業在融資擔保模式求新的法律問題分析
SMEs play an important role in China's national economy, has become China's economic growth and the basis for coordinated operation forces, support the development of SMEs is important. All along, the financing difficulties are restricting the rapid development of SMEs and difficult to crack one of the major problems. SME financing difficulties caused by many reasons, including credit financing is a major factor in the financial institutions are too dependent on land and buildings and other real estate as collateral, while the principal assets of SMEs but mostly movables and rights-based. Status quo based on ease financing difficulties, support and promote the development of SMEs in the practical needs of a growing number of financial institutions, administrative departments, enterprises active and innovative financing secured mode, and put into practice. Secured financing model innovation process, there are many legal issues worthy of our attention and constantly seek to improve the relevant legal system countermeasures.
中小企業在我國國民經濟中具有重要作用，已經成為我國國民經濟增長和協調運行的基礎性力量，支持中小企業發展具有重要意義。一直以來，融資難都是制約中小企業快速發展又難于破解的主要問題之一。造成中小企業融資難的原因有許多，其中信貸融資難的主要因素則是金融機構過于依賴土地和建筑物等不動產作為擔保物，而中小企業的主要資產卻多以動產和權利為主。
First, the SME financing guarantee model innovation practice
一、中小企業融資擔保模式創新的實踐
SMEs in a wide range of rights, with rich resources of movable property, movable property and rights of these can become collateral, therefore, reduce the financial institutions rely on secured by real estate, innovative SME financing guarantee model, with wide open spaces and excellent prospects. In recent years, driven by the People's Bank of China and the government's support, financial institutions, real estate and rights of secured financing for business innovation intensity increasing, and achieved good results.
中小企業享有的權利種類繁多，擁有的動產資源豐富，這些動產與權利都可成為擔保物，因此，減少金融機構對不動產擔保的依賴，創新中小企業融資擔保模式，具有廣闊空間和大好的前景。近幾年，在中國人民銀行的推動下和政府的支持下，金融機構對動產和權利擔保融資業務創新的力度不斷增加，取得了較好的效果。
(A) the rights of secured financing innovation
1, usufructuary secured financing innovation
Usufruct refers to the things of others within a certain range, to limit the use and benefits of fixed property. "Property Law" Section 184 provides that land, house sites, private plots and private mountain collectively owned land use right shall not be mortgaged, but the law can be secured except as otherwise provided. In addition, "Property Law" on the usufructuary is no restriction as collateral, which secured financing for the usufruct provides a legal guarantee. In practice, based on forest land contractual management rights, mining rights, such rights as the right to use the waters of secured financing mode, all belong to the usufructuary secured financing innovation category. These usufructuary to secure financing to help SMEs to take advantage of many of the potential value of the desired credit funds, and to some extent, improve the utilization of funds by banks to lend
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2, property rights pledge financing innovation
According to "Property Law" Section 223 provisions, equity, intellectual property rights in, accounts receivable and other property rights may be pledged. In practice, for the creditors, equity, intellectual property, accounts receivable and other rights of pledge of risk is difficult to control, therefore, financial institutions and property rights are unwilling to accept these pledges. In recent years, financial institutions, loans on the property rights of exploration and innovation in the main is to improve the rights of pledge financing valuation, rights of pledge registration, rights, trade and other related operational aspects, thereby reducing financing risks, eliminate the concerns of financial institutions, promote the rights of pledge financing development. In addition, financial institutions are continuing to explore expanding the category pledge of accounts receivable, which appeared orders pledge, travel tickets right of pledge financing charges, these financing model for the enterprise intangible property into dynamic assets, easing the financing difficulties of enterprises situation.
3, other rights of secured financing innovation
Rights secured financing model innovation practice there are many, such as Jianyang Rural Credit Cooperative Union launched gravel mining rights secured loans, Jiaxing Bank launched sewage right mortgage loan, Yiwu region to implement the right to use the commercial loans and so on. These rights secured financing mode broaden financing channels for enterprises, to a certain extent, solve the problem of financing the enterprise.
(Two) real estate secured financing model of innovation
More types of real estate resources, financing is vast, and financial institutions to continue to increase real estate secured financing model innovation, the introduction of the oil, gold, wine, garlic and other chattel mortgage lending model, another example Shandong Hengtai rural cooperative banks launched Steel mortgage lending model, these new innovative ways to guarantee a certain extent to meet the funding needs of enterprises, and promote a virtuous cycle of bank loans.
(Three) Guarantee innovative financing models
Guarantee innovative financing model is mainly guaranteed loans, ie three or more companies on a voluntary basis UNPROFOR body composition, bank credit UNPROFOR body members, members of the joint and several liability between a financing mode. According to industry, geographical differences, the banks used by UNPROFOR SME lending model is also different, with UNPROFOR fund model (Association of UNPROFOR mode), network UNPROFOR UNPROFOR industry, Joint Loan and other models. UNPROFOR members lending model is conducive to internal supervision and mutual supervision and timely repayment, while also having greater flexibility, variability, ease, guaranteed loans for SMEs to get more credit funds
Second, SME financing guarantee model innovation in legal trouble
(A) the relevant laws and regulations are not perfect
SME financing guarantee model of innovation and development of the legal system relevant to the needs of protection and support. And guarantees the rights and chattel unsound legal norms, leading SME financing guarantee model innovation development process, there are many problems.
1, lack of legitimacy of the rights guaranteed
(1) Sewage right mortgage lack of legal basis
Since the 2008 launch of the sewage Jiaxing right mortgage loan since mortgage emission rights model quickly spread across the country. Emission rights on the legal nature of a variety of academic perspectives: some scholars advocate sewage tenure usufructuary; Some scholars advocate a quasi-property attribute emission rights; Some scholars believe that emission rights is a kind of new environmental easement; Some scholars that emission rights are personal servitude. Some scholars believe that the right to enter the property sewage system difficult, and emission rights will be included in the contract claims both theoretically desirable, but also contribute to emission rights and flexible operation. However, according to property law doctrine, not as a property of emission rights obtained legal recognition, their property attributes can not be determined. Meanwhile, the environmental easement emission rights, human easements, contract claims limited nature of theoretical discussion, the legislature has not been confirmed. Therefore, the emission rights mortgages Practice also lack of legal basis for emission rights of property, as well as the feasibility of emission rights secured by the conditions of emissions trading and other issues relevant laws and regulations are subject to confirmation and improvement.
(2) river sand mining rights, the right to use commercial spaces lack of legal protection guaranteed loans
2010 Jianyang explore gravel mining rights pledge financing model for the protection of the smooth implementation of this model, Central Branch of People's Bank of Jianyang Jianyang City Water Conservancy Bureau jointly issued a "river sand mining rights Jianyang loans management approach (Trial) . " However, the nature of sand mining rights, some scholars advocate the case of mineral resources river gravel, sand mining rights belong to mining rights, if such a claim is true, gravel mining usufruct tenure, sand mining rights guarantees approach should be secured. "Water Law", "Mineral Resources Law" and relevant laws and regulations on the nature of sand mining rights are not required, therefore, sand mining rights guarantees are secured or pledged to meet the conditions of this warranty may be established in the relevant laws and regulations have yet to be be clear specification.
At present, many financial institutions launched the commercial spaces (shops) use rights secured loan. For commercial spaces or use rights guarantees are secured by collateral, commercial use rights issues such as whether the sublease, the existing laws and regulations are not clear and needs further specification
2, chattel mortgage regulatory laws and regulations imperfect
With the development of real estate secured financing, chattel mortgage financing secured regulatory model that is rising rapidly. In practice, chattel mortgage supervision of the general mode of operation is: debtor to the bank for loans and guarantees to be pledged movable property, bank commissioned a third party (usually the logistics enterprises in the chattel mortgage regulation as supervisor) on behalf of regulatory quality material, perform its regulatory responsibilities, including but not limited to physical confrontation quantity, quality supervision, of the debtor or the pledgor to be right out of storage limitations and restrictions, if necessary, the debtor's ability to fulfill obligations to be regulated, found to be harmful to the interests of the pledgee situation promptly notify the pledgee, to prevent the occurrence of the loss or expanded. Because the law on "supervision" concept is no express provision of chattel mortgage regulatory laws and regulations are not perfect, chattel mortgage creditor and regulatory implementation process primarily through pledge supervision supervisor to clarify the respective powers and responsibilities of the contract. Therefore, when the contract does not take into account the risk occurs, the creditor and the supervisor assignment of responsibilities on the lack of legal protection, so chattel mortgage regulators to actively improve the respective laws and regulations, the development of chattel mortgage regulatory operations to provide legal protection.
3, the financing guarantee institutions lack of industry standards
Financing guarantee institutions guarantee for financing innovation and development plays an important role. Due to the lack of legal norms for security agencies and sector management, in practice, lack of guarantee institutions guarantee effectiveness, can not play its due role. Therefore, we should actively improve the financing guarantee institutions relevant laws and regulations, a clear financing guarantee industry regulatory body, such as the guarantee institutions determine the rights and responsibilities and eliminate existing policy barriers, improve the credit guarantee institutions evaluation system.
(Two) the lack of legal environment
1, SME financing guarantee strong support for the lack of legal
Currently, the "Property Law", "Guarantee Law" and other laws on the registration system guarantees, warranties logistics transfer system requires not perfect, which leads to a security is difficult, difficult to achieve secured claims. Therefore, we should actively develop and improve various types of collateral circulation system and guarantee registration system in order to promote the development of movable property and rights guarantees for SME financing guarantee model innovation to provide legal support
2, the lack of credit legislation
Maximize the elimination of the Borrower, the Guarantor and the asymmetry of information between financial institutions, is the basic way to solve the financing difficulties. At present, China has not yet developed credit management laws and regulations, which seriously affected the credit industry, which led to financial institutions to lower levels of credit assessment for SMEs, the SME financing process, Piandai, asset repeated charges, associated enterprises Guarantees and other illegal activities is difficult to contain. Therefore, to accelerate the establishment of credit management laws and regulations, specifically credit bureaus information collection, information disclosure and credit interests of the parties and other legal issues, and promote the healthy development of SME financing activities.
SME financing guarantee model innovation, indeed solve the problem of financing has played a positive role. However, only after the legal aspects of a breakthrough, can be found in the market demand for innovation and promotion can be copied into an effective model. Therefore, to improve the relevant legal system, to support and promote SME financing guarantee model innovation and development, is to ease the financing difficulties of SMEs status of practical needs.
